In July 2018, a parliamentary committee published a report on its inquiry into older workers. The committee concluded that the government was not enforcing age discrimination law adequately and that workplace prejudice, unconscious bias and casual ageism are still rife.

What the report says about workplace ageism

The report estimates that over one million people over 50 who want to work are unable to do so because of discrimination, bias and outdated work practices. It makes various recommendations to address this situation, including:

• Greater transparency – reflecting gender pay gap reporting obligations, so that employers with 250+ employees are required to publish the age profile of their workforce
• An increase in flexible working – including all jobs being advertised as flexible from day one
• A statutory entitlement to five days’ paid carer’s leave – on a par with parental leave
• Developing a mentoring service to help businesses adapt to an age-diverse workplace

How is ageism defined under employment law?

The Equality Act 2010 contains the statutory protection against age discrimination in the workplace. Discrimination may be unfavourable treatment because of someone’s age (direct discrimination), something which applies to all but, which particularly disadvantages people in a particular age group and which an employer cannot show is justified (indirect discrimination) or, unwanted conduct which violates – or is intended to violate – a person’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment for them (harassment).

Examples of age discrimination

Age discrimination can take place at the recruitment stage, while someone is employed and even after the work has ended. Examples include:

• job advert asking for ‘youthful enthusiasm’, ‘drive’ and ‘motivation’
• job advert asking for someone “in first five years of their career”
• requirement to hold a degree
• being dismissed to avoid a pension pay-out
• stopping PHI payments at age 55
• not offering voluntary redundancy due to age
• subjecting younger workers to harsher criticism than others

While this report focused specifically on those considered to be ‘older’ (i.e. the over 50), it should be remembered that age discrimination laws protect those of all ages so that younger as well as older workers may bring claims in the employment tribunal.

What can your employer do to prevent workplace ageism?

Other than in some very limited circumstances it is against the law for employers to treat someone less favourably because of their age. The age gap between workers can now be 50 years or more so it may be difficult for employers to manage their competing needs and different outlooks. However, employers must do all that they reasonably can to prevent age discrimination taking place in their workplaces. This will include ensuring robust policies and rules are in place, that all staff receive appropriate training on these and their legal obligations and that a suitable culture of equality is engendered.

What are the penalties for age discrimination?

Discriminatory treatment by an employer because of age will entitle employees and job applicants to bring claims in the employment tribunal. If successful, individuals can recover potentially unlimited compensation (for both any economic loss suffered and injury to feelings) for such claims.

Where can I find information on how to handle ageism at work?

Impartial guidance about age discrimination has recently been published by the Advisory, Conciliation and Arbitration Service (Acas). The document looks at how ageism manifests in the workplace, how to prevent it, and how different treatment because of age can be allowed in very limited circumstances.

The guidance details situations where employers are at risk of ageism and how to avoid discriminating against applicants as a result of their age. These situations include:

• during the recruitment process;
• at training and promotion stages;
• during performance management;
• at retirement.

One example given at the recruitment stage is that employers are advised to set out the type or types of experience needed for a role rather than ask for a certain number of years’ experience.

Dealing with specific ageist behaviours

Stereotyping

Stereotyping – making assumptions about job applicants’ and employees’ capabilities and likely behaviours because of their age – is one of the most likely causes of age discrimination. Stereotyping can often lead to:

• poor decision making when recruiting and promoting or deciding who gets trained;
• demotivation of existing workers who become aware of the stereotyping;
• less trust among colleagues.

Ultimately, it can lead to discrimination claims.

There are ways to avoid stereotyping. They include:

• judging people strictly on their job performance or quality of their job application – not assumptions because of their age;
• having different age groups in a team or project;
• encouraging different age groups to swap ideas, knowledge and skills.

Using ageist language

Derogatory and abusive terms, and comments about an employee or job applicant because of age are likely to be discriminatory. Examples might include a younger worker telling an older colleague they are ‘past it’ or ‘over the hill’ or an older employee saying to a young colleague, ‘you’re just a poor little snowflake’.

In discrimination, how the recipient perceives the words matters more than the intention of the person in saying them. It is no defense to say the comments were ‘only banter’ or that this type of culture was accepted in the workplace.

When different treatment due to age may be allowed

The law contains some exceptions where different treatment because of age can or may be lawful. They include:



• where the need for certain types of discrimination because of age can be lawfully proved by the employer
• the National Minimum Wage and National Living Wage
• pay and any extra benefits and perks linked to certain periods of time with the employer
• where being a particular age or within a particular age range, or not a particular age, is a legal requirement of the job. This is likely in only very limited circumstances. In law, this is known as an occupational requirement
• some circumstances in redundancy. For example, deciding to keep employees who have been with the employer for longer, and making redundant employees with less time with the firm. This is likely to discriminate against younger employees. However, it could be allowed if the employer can prove a lawful business reason in the circumstances – for instance, keeping the most experienced workers who are fully trained and skilled as they are essential to the future of the restructured company.